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504 Basics Presentation
- 1. Basic Understanding of Section 504 A Campus Training Module Developed by Region 9 ESC
- 2. 2 Q: What is Section 504 and why do we need to know about it? • It is a federal civil rights law that prohibits discrimination against individuals with disabilities “No otherwise qualified individual with a disability in the United States …shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”
- 3. 3 Q: Is this like ADA? • Yes. Section 504 and the Americans with Disabilities Act are considered sister-statutes that share a civil rights approach to disability discrimination as well as common language • And it’s because the ADA was amended in 2008 that the number of Section 504 students is increasing so much
- 4. 4 Q: How did the ADA changes affect Section 504? • Because what happens with ADA applies to Section 504; the ADA amendment says this in its appendix: . “…unless expressly stated otherwise, the standards applied in the ADAAA are intended to provide at least as much protection as the standards applied under the Rehabilitation Act.”
- 5. 5 Q: How is Section 504 different from special education? • Both Section 504 and the ADA operate with a different definition of disability and a different approach to it than does IDEA • This means many children not eligible for special education services may be qualified under Section 504 .
- 6. 6 IDEA Section 504 Purpose An education act Provides federal financial aid to states and local education agencies to guarantee special education and related services to eligible children with disabilities A civil rights law Prohibits discrimination on the basis of disability in programs and activities receiving federal funds (No separate source of funding for this) Protected Students ages 3-21 who meet specific disability categories defined by the law A student with a physical or mental impairment that substantially limits a major life activity
- 7. 7 IDEA Section 504 Services Gives individual supplemental educational services and supports in addition to the general curriculum, and FAPE applies as specially designed instruction Requires schools to eliminate barriers that would prevent students from participating fully in programs and services offered in the general curriculum, and FAPE applies with concept of leveling the playing field Service Delivery Requires an IEP reasonably calculated to provide “educational benefit” to the student Requires a services plan with reasonable accommodations, but some students may be “technically eligible” for 504 and need no plan
- 8. 8 Q: Is every special education student also 504-eligible? • Yes, the basic nondiscrimination protections of Section 504 technically apply to IDEA students; however, all of their disability-related educational needs will be met through the ARD Committee process • A special ed student will never have both an IEP and a Section 504 plan
- 9. 9 Q: Why are more students qualifying under Section 504? Three reasons: • Congress says to interpret the definition of disability broadly (physical or mental impairment) • The list of major life activities expanded and includes bodily functions • The determination of “substantial limitation” has changed and a new mitigating measures rule added .
- 10. Physical or mental impairment • Section 504 does not specify categories of disability • Can include any mental disorder, including emotional or mental illness as well as specific learning disabilities • Physical impairments can be neurological, musculoskeletal, respiratory, digestive, cardiovascular, etc. • No exhaustive list exists 10
- 11. 11 Major life activities as of 1-1-2009 • Eating • Sleeping • Standing • Lifting • Bending • Reading • Concentrating • Thinking • Communicating Operation of a major bodily function, including an organ within a body system • Functions of the immune system • Normal cell growth • Digestive • Bowel • Bladder • Neurological • Brain • Respiratory • Circulatory • Endocrine • Reproductive functions
- 12. 12 Substantial limitation • Section 504 regulations do not define it Ask this question: Does the impairment make this particular major life activity more difficult or burdensome compared to what it would be for someone in the general population? Yes? It meets the threshold of substantial limitation. Impairment + Impact on School Functioning (behavioral, social, emotional, and academic)
- 13. 13 Mitigating measures • When making disability determinations, schools cannot take into account student use of such things as: • Medication; medical supplies, equipment, or appliances; prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; or mobility devices • Assistive technology • Reasonable accommodations or auxiliary aids or services • Learned behavioral or adaptive neurological modifications • Excluded: ordinary eyeglasses and contact lenses
- 14. 14 Q: So how does the school identify these kids? • Section 504 has Child Find requirements similar to those of IDEA • The school’s duty to evaluate for Section 504 is triggered as soon as there is reason to suspect disability and the need for services •
- 15. 15 Q: What happens then? • The school will form a committee to evaluate and then make an eligibility determination • Parental consent is needed first, and Notice of Parent Rights is given • Evaluation = Collecting, gathering, and interpreting data from various sources about the student’s functioning (academic, behavioral, social, and emotional)
- 16. 16 Q: After the data is gathered, then what? • The committee decides • What is the physical or mental impairment? • Are one or more major life activities or major bodily functions impacted? • Is there substantial limitation? • If eligible, does the student require a services plan? • What services or accommodations are appropriate? • Is there additional data the committee needs in order to establish eligibility or to determine an appropriate plan? Impairment ≠ disability automatically
- 17. Q: Why would a student not need services or accommodations? • Because the student’s needs are fully met 17 through the use of mitigating measures and so no services are required from the school • Because the student’s impairment is in remission and so there is no need for services (at this time)
- 18. 18 Q: What do they “get” with 504? These rights to: – Be free from actions that discriminate on the basis of disability – Three-year reevaluations – Manifest determination review (MDR) in the event of behavior issues – Protection from accumulations of short-term disciplinary removals – Complain to the Office for Civil Rights – Due process hearings – Access equally extracurricular activities and nonacademic services
- 19. 19 Q: What about kids with plans? • All of that plus a services plan that is individualized, based on identified needs caused by the impairment and the limited life activity or activities – Curriculum is not modified – Evaluation data forms the basis for accommodation decisions • The need for the accommodation must arise from the impairment and isn’t tied to the need to pass a statewide assessment later in the year
- 20. Q: What if a student doesn’t want 20 to use his accommodations? • Because the services plan is a legal document, it cannot be vacated arbitrarily by either the student or the teacher – So, document the refusal, notify the campus Section 504 coordinator, and be ready to reconvene as a committee to address the issue
- 21. Q: Do substitute teachers have to 21 comply with plans? • Yes, subs need to know about accommodations in plans and should provide them • Also, they should do so proactively instead of waiting for students to request them
- 22. 22 Q: Isn’t it just good teaching to accommodate? • Teachers often informally accommodate in the classroom as well as differentiate instruction • However, the line is thin between that and providing services before an evaluation for 504 eligibility – In Section 504, procedure and process matter, which means don’t provide services before the evaluation
- 23. 23 Q: What about the slow learner who needs accommodations? • Regulations and guidance from the Office for Civil Rights note that students should not be put into Section 504 just because they are having academic trouble – “Children in need of remedial instruction, such as children who are behind a grade level or who are ‘slow learners’ but who have not been diagnosed as having a specific learning disability or other disability are not considered persons with disabilities.” OCR Handbook, pp. 70-71
- 24. 24 Q: Can a Section 504 student take AP or honors classes? • Yes, students with disabilities may take the classes and use their accommodations or related services • To bar such students from accelerated classes because they need accommodations would be discriminatory
- 25. 25 Q: Can students ever be dismissed from Section 504? • Yes, just as they can be from special ed • This may especially happen when a student is 504-eligible for temporary impairments
- 26. 26 Q: Do Section 504 kids have to get passing grades? • No, being 504-eligibile is not about being guaranteed passing grades or all A’s • The initial question to ask is whether assignments or tests that were failed were the result of school error in not implementing accommodations (at all, or fully) or whether the plan was not appropriate to begin with • However, OCR has said that student effort counts
- 27. 27 Q: Does the Section 504 plan apply to field trips, too ? • Yes, Section 504 applies to extracurricular activities and nonacademic services such as field trips and school performances as well as sports and after-school clubs
- 28. 28 Q: What if a student is teased because of his impairment? • Be especially watchful for any sign of teasing, bullying, or harassment because of disability • Any incidents should be treated seriously and promptly by being reported to the campus administrators
- 29. 29
Editor's Notes
- Note to Presenters: Welcome to “Basic Understanding of Section 504.” This campus training module has been developed by Region 9 Education Service Center as a way for districts to train teaching and support staff on their obligations under Section 504 law. Such training ideally would be conducted annually and documented with sign-in sheets that are retained. This training covers the essential rudiments of the Section 504 historical and legal background; Child Find obligations; referral and eligibility determination; overall procedural requirements; and development of services plans as well as the role of the Office for Civil Rights. This is a basic overview of what primarily teachers need to be aware of with Section 504. It does not cover in detail temporary or episodic impairments or Prongs 2 or 3 of Section 504 eligibility criteria. Those are better left to administrators to be aware of or for future trainings. The training module can be presented in one setting or can be broken up into several smaller trainings to allow time for discussion among participants. Additionally, as this is a “proposed” training module, districts are free to modify it to their needs. If this is done, please remove the note on Slide 1 about the training being developed by Region 9 ESC. Presenter’s Notes are intended to supplement material on slides. They can be read or paraphrased. The material presented in this training has been taken from several sources, including public websites of the U.S. Department of Education and the Office for Civil Rights as well as from various LRP Publications materials and CESD conference handouts. However, each district should seek guidance from its own legal counsel on how best to establish and maintain consistent policies within the district that comply with federal regulations.
- The Rehabilitation Act of 1973, signed into law by then-President Richard Nixon, contains this paragraph, in Section 504. It is designed to protect persons with disabilities from discrimination based on the disability, and it applies to entities receiving federal funds, which includes public school districts. Once an entity such as a school district accepts federal money, every district and program activity within the school district (including extracurricular and nonacademic) is subject to Section 504, which requires three things: That eligible students may not be excluded from the district’s program and activities because of disability That eligible students may not be denied the benefits of a district’s programs and activities because of disability That protections of nondiscrimination because of disability are in place. The idea in a nutshell? That qualifying students have an equal opportunity to receive an appropriate education despite their disability. Why do we all need to know about it? Because more and more students are being referred for 504 evaluation. Teachers will be serving on 504 committees, helping to determine eligibility and then helping to draft services plans. And because not being informed can result in possible complaints to the Office for Civil Rights, which oversees Section 504.
- Section 504 applies to entities receiving federal funds, while the ADA applies to essentially every entity whether or not it receives federal funds. The only exceptions to ADA are churches and private schools. Private schools not associated with a religious organization have to meet ADA provisions, but they may be exempt from Section 504 because they do not receive federal funds.
- In 2008, Congress amended the ADA to broaden the definition of disability because of workplace litigation that was ending up in court, where judges were putting up more barriers to eligibility and employers were not having to accommodate in the workplace. Congress didn’t like that, and so it amended the ADA. The changes Congress made were to : Construe the definition of disability broadly Expand major life activities that could be affected and to include major bodily functions Include impairments that are episodic or in remission Determine substantial limitation with a new mitigating measures rule, and, Lower the standard for what “substantial limitation” is. The changes took effect on Jan. 1, 2009. Congress wanted changes in the workplace, but K-12 public schools also have been affected in terms of increased student Section 504 eligibility as well as a more complicated Child Find duty and evaluation. More on this will be discussed later in the training.
- Under IDEA, “children with disabilities” are those formally evaluated with set requirements in the statute and found to have one or more of the 13 recognized disabling conditions listed. Each disabling condition has outlined with it certain eligibility criteria that must be met in order for the student to qualify for special education services as a result of that condition. Under Section 504, no list of “approved” disabling conditions exists. All the regulations say is that a person with a “disability” is one who has a physical or mental impairment which substantially limits one or major life activities, has a record of such an impairment, or is regarded as having such an impairment.
- Here is a more detailed look at the differences between IDEA and Section 504.
- Picture a student being served in special ed as a scuba diver – lots of special equipment and lots of “extras” are involved, such as a boat to get him to the deep water, which takes money; extra training in what the equipment is and how to use it; frequent monitoring as he dives down; the need for immediate response and help should something go wrong. Now picture a child snorkeling. He pretty much stays on the water’s surface, usually just has a snorkel and face mask, sometimes fins. He’s able to wade out by himself to where he wants to go, and the anyone watching on shore can look up occasionally to keep tabs on him. This is like Section 504. Generally, if a student’s needs can be met through Section 504, he or she won’t need special education services.
- Remember that Speech-Impaired (SI) students are special education students and so all educational decisions for them will be made through the ARD committee, not through a Section 504 committee. A “speech-only” student remains a special education student. Should a “speech-only” student also need a referral for dyslexia assessment and/or placement into a dyslexia program, that will be handled through the ARD Committee, not through the Section 504 Committee. This is also true should a “speech-only” student in RTI at tiers 2 or 3 need additional support.
- The next several slides will look at each of these three reasons in detail. As we go through them, think about how a Section 504 committee would answer them to determine eligibility, based on these criteria: A student eligible for Section 504 has a physical or mental impairment that substantially limits one or more major life activities.
- For purposes of Section 504, then, a physical or mental impairment could include such things as: AD/HD Dyslexia Anxiety disorder Bipolar disorder Autism Peanut allergy A child with a speech impairment who does not qualify for IDEA services Asymptomatic HIV Pregnancy-related complications such as pre-eclampsia as a temporary disability Asthma Diabetes Orthopedic impairment that has a student walking with a crutch or cane
- Originally the Section 504 regulations had these as major life activities: “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” With the addition of the life activities in the left box, consider how the potential is greater for more students to be included in Section 504. For example, “concentrating” as a major life activity will cover those students with attention issues. In the definition section of the ADA amendments, Congress added the bodily function piece. This makes determining eligibility easier for many. Consider, for example, an impairment such as diabetes. It can be tied easily to a major bodily function (endocrine). In a similar way, asthma can be tied to the respiratory system.
- Section 504 regulations do not define “substantial limitation.” During the evaluation, the committee determines whether the threshold of “substantial limitation” is met. A comparison standard is used. The comparison had been to the “average person,” a term which Congress rejected when it amended the ADA and changed the wording to be someone in the general population. Additionally, the impact will not be just on learning or academics. Does the physical or mental impairment substantially limit functioning behaviorally, socially, and/or emotionally as well?
- “Mitigate” means to make less severe. Before Congress changed the ADA, schools could factor in mitigating measures in deciding 504 eligibility. Now, however, the “ameliorative effect” (improving effect) of such measures cannot be considered. Think about the situation of a student who takes medication for AD/HD and functions relatively well in school as a result. Before the ADA changes, he likely would not have been found eligible for Section 504. But in the post-ADAAA world, he likely would be, because the committee would have to ask this question: “If he were not taking his medication, would he be substantially limited (compared to someone in the general population) in the major life activity of concentrating?” If the answer is “yes,” he will be 504-eligible. Or, consider another example. If a student is receiving dyslexia therapy (programming) and is successful, would she be eligible for Section 504? Likely, yes, because the question would have to be asked: “If she were not receiving the dyslexia therapy, would she be substantially limited (compared to someone in the general population) in the major life activity of reading?” Others students in the general population of, for example, second-graders, learn to read. Having dyslexia would substantially limit the hypothetical student in comparison with her peers. Virtually all students receiving dyslexia therapy will be eligible for Section 504.
- Basically, a student should be referred for a Section 504 evaluation when the district suspects disability or believes the student may be eligible. When might this be? Some examples could include these: The school knows a student is taking medication; The parents bring in an outside psychological evaluation; A teacher refers a student to the campus Student Support Team for difficulties (behavioral, social, emotional, academic); A parent tells a teacher during an after-school conference that she worries because her child routinely takes three hours to complete the same amount of homework that a classmate finishes in thirty minutes; A student has spent a semester cycling through RTI tiers with little improvement noted; A parent says he thinks his child has a problem and wants to know whether there is more help available at the school; A parent says she wants her child looked at for Section 504; The attendance clerk or school secretary notices that a student is accumulating a number of absences; The student did not qualify on a past referral to special education; The student has frequent failures, disciplinary referrals, possible attentional difficulties; Informal classroom accommodations have not worked. A parent does not have to state explicitly that he thinks his child has a disability, and a child does not have to be struggling academically or failing in order to receive a Section 504 evaluation. Additionally, absences could be a signal that something is going on physically or mentally with a child, and that should warrant inquiries. Parents, teachers, nurses, and other school staff may refer a student for Section 504 evaluation. Educational need does not have to be present in order to trigger a referral.
- Under Section 504, “evaluation” does not necessarily mean formal diagnostic assessment. The exception is for dyslexia. When that is suspected, formal assessment is done under guidelines outlined in The Dyslexia Handbook, Revised 2007, Updated 2010. The Section 504 Committee decides how much data is required for a valid evaluation in other cases.
- There is no “automatic” eligibility for Section 504. An impairment in and of itself is not a disability. An impairment becomes a disability when it substantially limits one or major life activities. Also, just because a student has a medical diagnosis does not mean that he automatically will be eligible under Section 504. A physician’s medical diagnosis is just one piece of data that would be weighed in an evaluation. Additionally, the “substantial limitation” piece part of the eligibility criteria would have to be addressed in the case of the diagnosis of an illness.
- This is called a “technically eligible” 504 student. An example of the first type of student would be one who has severe asthma but does not need special ed services as Other Health Impaired (OHI). She participates in regular physical education at school as well as in extracurricular sports. She also needs no help with medication administration. No school policies, practices, or procedures need to be modified for her. So, she needs no services (formerly known as accommodations) plan. However, she is a person with a disability (asthma) that would substantially limit (if she weren’t taking her medication) the major life activity of breathing and the bodily functioning of the respiratory system. Therefore, she is 504-eligible. She will still have procedural rights (primarily, to an MDR and three-year reevaluations). An example of the other type of technically eligible student would be one who has seasonal allergies that generally flare up only in a three-month window. This type of student may need a contingency accommodation plan for the time when the impairment becomes active again.
- Extracurricular activities and nonacademic services include such things as sports, choir, and after-school day care.
- Section 504 accommodations are meant to level the playing field in terms of giving students an equal opportunity to access the benefits of a public education. It is not meant to guarantee a particular result or to maximize potential. It is also not intended that accommodations become a buffet-line checklist; whatever is put in the services plan should be tied by evaluation data to documented need arising from the disability. The Office for Civil Rights has said that overaccommodating can be as wrong as underaccommodating in that both deny the “appropriate” part of FAPE. Each Section 504 plan is a legal document that must be followed at all times. It starts on Day 1 of the new academic school year or, in the case of newly identified students, as soon as the committee signs off on the services plan. A teacher who has questions about accommodations, about what they mean, or how to implement them should visit with the campus Section 504 coordinator for clarifications.
- This is an issue to be handled immediately in order to continue to provide FAPE to the Section 504 student. Only the Section 504 committee, through a properly constituted meeting, can remove or alter an accommodation. On the next several slides, more questions that teachers may face will be addressed.
- This applies to all substitutes in all subjects, not just those who are long-term.
- Evaluation must precede delivery of services. Procedural rights are involved.
- These students may have educational problems, but they are not disabled within the meaning of Section 504. “Reading difficulties” or “reading deficit” is not a physical or mental impairment. Inappropriately making a student 504-eligibile exposes the school to OCR complaints for inappropriate identification and burdens the school and teachers unnecessarily by having to keep up with the Section 504 regulations and processes for students not entitled to them.
- Teachers are obligated to provide all accommodations identified in a Section 504 plan. If a teacher believes a certain accommodation will fundamentally alter the basic nature of the honors or accelerated class, he or she should talk with the campus Section 504 coordinator.
- Students who remain in Section 504 past the need are receiving an unfair advantage over other students, which is not the intent of the law.
- If the school is providing an appropriate program, it is up to the student to take advantage of it. OCR has stressed that student effort does count.
- The idea of Least Restrictive Environment (LRE) applies to a student’s entire program, including nonacademic and extracurricular activities.
- The U.S. Department of Education recently (Aug. 20, 2013) issued a strongly worded Dear Colleague letter addressing bullying of students with a disability. The letter said, in part: “Bullying is no longer dismissed as an ordinary part of growing up, and every effort should be made to structure environments and provide supports to students and staff so that bullying does not occur. Teachers and adults should respond quickly and consistently to bullying behavior and send a message that bullying is not acceptable. Intervening immediately to stop bullying on the spot can help ensure a safer school environment.” It goes on to note that students with disabilities are disproportionately affected by bullying. Here is an example: A student with dyslexia who is “teased” by being called a lousy speller is being targeted because of disability.
- This is Section 504 in a nutshell. Are there any questions?